TaxTMI 
TaxTMI 
2016 (7) TMI 359
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....ted at other Ports ordered the enhancement of value of imported goods and issued respective Orders-in-Original accordingly. 2.2 The appellants filed appeals before the Commissioner (Appeals) against the respective Order-in-Original enhancing the value of the imported goods. The Commissioner (Appeals) rejected these appeals. Thereafter the appellants are before this Tribunal against those Orders-in-Appeal passed by the Commissioner (Appeals). The details of these cases mentioning Bill of Entry, Quantity of imports, value declared, value enhanced as mentioned by the appellants are given in the following Tables : TABLE 1 APPEAL No. C/349/2006-M/s Peekay Steel Castings Pvt. Ltd. against Order-in-Appeal No 142/2006 dated 22.5.2006 Bill of Entry Number & date Quantity of HMS (MT) Value Declared by Appellants (Us $ per MT) Value Adopted by Customs (US $ per MT) Excess Duty Paid (Rs) 145126/13.7.4 198.020 252.50 (As per High Seas Sale Agreement) 268 30,356 145527/22.7.04 180.940 253 (As per supplier's invoice) 268 22.886 Excess Duty paid : Total 53,242 TABLE 2 APPEAL No. C/395/2006-M/s Peekay Re....
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....: (i) The appellants submitted before the original adjudicating authority as well as the Commissioner (Appeals) that the relevant documents including original invoices from Foreign Suppliers, Certificate of Origin, irrevocable LC issued for negotiating the value, proforma Invoices, Bill of Lading, Packing List, Statement showing the import of HMS, etc. to show that the appellants were regular importers. (ii) The common issue in these five appeals is whether the Customs can reject transaction value and enhance the price of imported goods merely based on the price of purported similar goods imported at other Ports in terms of Rule 6 of the Customs Valuation Rules, 1988. (iii) The appellants submit that in terms of Rule 3 (i) of the Customs Valuation (Determination of the price of Imported Goods) Rules 1988, the value of imported goods shall be the transaction value. If the value cannot be determined under clause (i) then only the value shall be determined by proceeding sequentially under Rules 5 to 8 of the Rules. (iv) In terms of Rule 4(1), transaction value of imported goods shall be the price actually paid or payable for the go....
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....tric Ton; and in case of Appeal No. 337/2006, the value declared by the appellants was Rs. 10,120 per MT and contemporaneous imports of the same goods through Cochin Port was in the range of Rs. 12,287 to 12,707 per MT. The original adjudicating authority, Deputy Commissioner, therefore, ordered enhancement of value to US $ 268 per MT in four appeals and in case of Appeal No. 337/2006, he enhanced the value to Rs. 12280 PMT. 6.1 The Commissioner (Appeals) in these cases sustained the orders of the original adjudicating authority enhancing the value. However, we find that nowhere the original adjudicating authority and the Commissioner (Appeals) in their orders have been able to convincingly reject the transaction value declared by the appellants in their import documents. We find that the Revenue has not been able to convincingly prove that the contemporaneous imports quoted by the original adjudicating authority in the orders were of 'identical goods'. 6.2 Further provisions of Rule 3 (ii) of the Customs Valuation (Determination of the Price of Imported Goods) Rules, 1988 are clear that if the transaction value of the imported goods has to be rejected, then value....
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.... 1[(f)] the sale or price is not subject to same condition or consideration for which a value cannot be determined in respect of the goods being valued; 1[(g)] no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of Rule 9 of these rules; and (h) the buyer and seller are not related, or where the buyer and seller are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule (3) below..." 1. Inserted by M.f. Notification No. 41/2001-Cus (N.T.), dated 7-9-2001. 2. Re-numbered by M.f. (D.R.) Notification No. 41/2001-Cus (N.T.) dtd 7-9-2001 6.3 We find that the Hon'ble Supreme Court in the case of Eicher Tractors Ltd. Vs. CC., Mumbai (supra) has made certain observations which support the stand of the appellants. It is to be noted that Hon'ble supreme Court in this case refers to the un-amended Rules 4(2) of Customs Valuation Rules, 1988, which was later amended by way of insertion /renumbering by M.F. (d.R.) notification No. 41/2001-Cus (N.T....
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....n and explicatory of the special circumstances in Section 14(1) quoted earlier. It follows that unless the price actually paid for the particular transaction falls within the exceptions, the Customs authorities are bound to assess the duty on the transaction value. 10. .... .... .... 11.  .... .... .... 12. Rule 4(1) speaks of the transaction value. Utilisation of the definite article indicates that what should be accepted as the value for the purpose of assessment to customs duty is the price actually paid for the particular transaction, unless of course the price is unacceptable for the reasons set out in Rule 4(2). "Payable" in the context of the language of Rule 4(1) must, therefore, be read as referring to "the particular transaction" and payability in respect of the transaction envisages a situation....
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....actually paid or payable for the goods as the transaction value, except where exceptions enumerated in Rule 4(2) are attracted, which is not the case here. It is, therefore, manifest that both Section 14(1) and Rule 4 provide that in the absence of any of the special circumstances indicated in Section 14(1) and particularised in Rule 4(2) of the 1988 Rules, the price paid by an importer to the seller in the ordinary course of commerce is to be taken as the transaction value for the purpose of valuation of goods." 6.5 Further the Hon'ble Supreme Court in the case of Commissioner of Customs, Vishakhapatnam Vs. Aggarwal Industries Ltd. (supra) has observed that mere suspicion upon the correctness of the invoices produced by the importer is not sufficient to reject the transaction value and onus in such cases to prove the undervaluation is on the Revenue. In this regard, we quote from this decision of the Hon'ble Supreme Court to reinforce the stand that the Revenue has not been right in all these appeal cases when the declared invoices value were enhanced by the adjudicating authority. The Hon'ble Supreme Court in this case inter-alia observes as under : " 11. ....
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....ent points in time. .... .... .... .... In our opinion, the import instances relied upon by the revenue could not be treated as instances indicating contemporaneous value of the goods because contracts for supply of the goods in those cases were entered into almost after a month from the date of contract in the present cases, more so, when admittedly there were drastic fluctuations in the international price of the commodity involved. We are, therefore, of the opinion that the revenue was not justified in rejecting the transaction value declared by the respondents in the invoices submitted by them." 6.6 We also take support from the decision of CESTAT, Chennai in the case of Commissioner of Customs, Chennai Vs. Pushpanjali Silks Pvt. Ltd. (supra) which held that unless there is contention by the Department that any amount over and above the agreed price was paid by importer to supplier, or that importer was related to supplier, or price paid was influenced by any extra-commercial consideration, there cannot be any valid reason to reject the transaction value under Ru....